John Walker's Fourmilab Change Log

Monday, November 15, 2004

U.S. Supreme Court--Re-confirmation Amendment

Many people are worried about appointments to the U.S. Supreme Court; regardless of which party wins an election, the judges appointed and confirmed during their term in government serve for life (unless impeached), and thus can cast a shadow in history much longer than the returns from any single election.

I am neither a U.S. citizen, resident, nor voter, but will you permit me to propose an amendment to their Constitution to limit the long-term impact of ideological excursions in their politics? When the U.S. Constitution was ratified, people who had attained the age to become candidates for the Supreme Court didn't, for the most part (although there were exceptions), live for all that long after they took office. Now, however, it's quite likely that a nominee at age 50 may continue to sit on the court for five decades--twelve presidential elections--after having been chosen. Further, sitting justices (I detest that word--only "judge" is actually valid, but most people use the former) tend to time their retirements so similarly-inclined administrations get to choose their successors, which introduces further decades of time-hysteresis into the system.

What I propose is simple, albeit requiring a Constitutional amendment to implement. Judges nominated and confirmed for seats on the Supreme Court shall be re-confirmed for their seats on or before 7 years after their last confirmation or re-confirmation. Re-confirmation shall require a vote of <RADICAL>50%</RADICAL> <REASONABLE>33%</REASONABLE> or more of the Senate. Failure to re-confirm will result in the seat being declared open and subject the the regular nomination and confirmation process. The non-confirmed judge may, of course, be re-nominated as his or her own successor.

To answer some questions in advance, I've chosen seven years not out of fondness for the French septennat, but because it's relatively prime with the terms of U.S. representatives, presidents, and senators. Further, I'd advocate this rule be applied for all "appointed for life" judicial posts in the U.S., not just the Supreme Court. If there's one lesson of democracy, it's not that it guarantees the optimal solution, but that it provides an excellent error correction mechanism when things start going sideways.

The goal is simply to provide a mechanism to re-sync the judicial review process with the political consensus on a rolling time frame longer than the presidential election cycle but not determined by the aleatory vagaries of human mortality.